Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward

from the doesn't-that-look-silly-now dept

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and
venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error.
A showing of “good cause,” which is required for discovery ostensibly intended to
identify defendants, requires an evaluation of whether the information sought from
the ISPs would be used to name and serve defendants in the forum. See, e.g.,
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where
“the purpose of a discovery request is to gather information for use in proceedings
other than the pending suit, discovery properly is denied”). The Copyright Act and
the District of Columbia’s long-arm statute limit the court’s reach to defendants
who reside in the district. And the uncontroverted evidence before the district
court showed that few, if any, of the targeted Internet subscribers reside in the
District of Columbia—as publicly available geolocation software used by
Plaintiff’s counsel in other cases confirms. The district court’s decision to defer
any consideration of personal jurisdiction or venue until after the subscribers’
personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether
the 1,000-plus “Does” are misjoined provides an additional basis for reversal.
Plaintiff, by routinely declining to name and serve defendants after obtaining the
subscribers’ personal information, virtually ensures that Rule 20’s requirements for
joinder will go unaddressed if not evaluated at the outset. And as a growing
majority of courts have concluded, deferring a ruling on joinder deprives the courts
of filing fees and encourages a proliferation of improperly coercive lawsuits.
Given the groundswell of published opinions that disagree with the lower court and
have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,”
deferring a ruling on joinder in a suit that seeks nationwide subscriber information
also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record
reflects that Plaintiff’s counsel’s cases have migrated across the country, with the
venues selected, not by the locus of the parties or situs of harm, but based on
counsel’s perceptions of which forum is most likely to authorize the greatest
discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s
cases further underscores the problem with the lower court’s approach. The ISPs
raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them
vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge
shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not
be the destination for 1,000-plus Doe cases that are brought primarily to compile
mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of
fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged
documents were not identified for the court below; they necessarily affect the
“good cause” analysis and provide an alternative basis for reversal to address the
evidence now being considered in the pending disciplinary proceedings in the
Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe
No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have
adopted a balancing standard to assess requests for early discovery to identify
anonymous online speakers that protects the right to speak anonymously while at
the same time ensuring that plaintiffs who have valid claims are able to pursue
them. Without such a standard, abusive plaintiffs could too easily use extrajudicial
means against defendants from whom they could not, in the end, obtain judicial
redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet
Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and,
therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp.
2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when
they share files on BitTorrent, and their First Amendment rights must be
considered before the Court allows the plaintiffs to override the putative
defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of
copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that
discovery to identify the anonymous user without adequate initial evidence that
individual Doe Defendants committed the alleged infringement. The weakness of
AF Holdings’ assertions of personal jurisdiction and proper joinder means that
First Amendment concerns weigh more strongly here in favor of quashing the
subpoenas. Certainly it was not appropriate for the district court to ignore the
question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.

Reader Comments

"use of BitTorrent to select and share movies is expressive"

Well, at some LOW level, but MAY ALSO BE COPYRIGHT INFRINGEMENT.

Those are not mutually exclusive. Common law copyright is based in the recognition that the creator should control distribution: that's the societal deal which is the key point that allows works to be created in the first place.

The poison pill that EFF and others want to plant there must logically yield to greater rights, and that's why a Court CAN allow "the plaintiffs to override the putative defendants’ anonymity."

With that important exception, I'd go along with prohibiting such mass joinder.

But you pirates are NOT losing a key right when sites listing infringed material are shut down: you're just losing some EASE in stealing someone else's intellectual property.

Re: Re: "use of BitTorrent to select and share movies is expressive"

Re: "use of BitTorrent to select and share movies is expressive"

In 1834 the Supreme Court ruled in Wheaton v. Peters (a case similar to the British Donaldson v Beckett of 1774) that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.

Re: "use of BitTorrent to select and share movies is expressive"

> hat's why a Court CAN allow "the plaintiffs to override
> the putative defendants’ anonymity."

The plaintiffs should only be able to obtain discovery of the identity of putative defendants AFTER they file an actual individual lawsuit which they intend to pursue.

They individually sued Jammie Thomas-Rasset and won. They should sue each and every individual. Wouldn't this help to educate the public? Wouldn't this help to stop infringement? Those are your stated goals. Don't you believe in your own lawsuits? If not, then you just want to engage in a copyright trolling shakedown using the court as a tool.

Re: "use of BitTorrent to select and share movies is expressive"

Re: "use of BitTorrent to select and share movies is expressive"

ROFL! Most pirates know better and surf under the radar the majority of the people getting cause are casual torrent users.

Even then a IP address is zero proof of who actually did it. I could warload across my city all day from blocks away just to set them up. WiFi security is fucking garbage and most of the people go with default settings which is insane if you ask me.

The truth is they have no desire for piracy to stop and I'd bet they upload the shit themselves just so they can fucking extort people.

Yeah I have no problem accusing them of that because just like my government I don't give a fuck if your innocent because your guilty and even if you were proven innocent I'd still say you're guilty.

Don't blame me it's your way of thinking not mine I'm just playing by your rules.

the best thing that could happen to Howell is for her to go from lobbying into the lobby, dismissed from being a judge until she learns that the job involves knowing and obeying the law, not favoring old paymasters!

Re:

Re:

"Labor discipline" doesn't work on the political class in the US, as there are too many other legal ways for them to earn money afterward.

In fact, one reason "throwing the bums out" is so widely promoted as an answer is precisely *because* it allows people to think they did something, when in fact they merely changed the face and left the mind behind it in place. A bit like the shibboleth "free speech"... as if the Constitution were a suicide pact or tablets from Heaven. Americans need to stop yammering and start breaking the toys of the rich unless they wish to have their lot set in life from birth.

Make it a felony already

I'm with Holder and Watt, it's time to make it a felony akin to murder 1. That would stop you pesky pirates from doing your evil against allah and man. What will it take for the US government to start executing pirates like you know they should?

It's all fun and games until someone gets hurt and that would be the ultimate hurt, butt and otherwise. It worked for France back when they started executing people for stealing fabric designs and it will work for the US of A today.

Re: Make it a felony already

Wow! I don't think there's anyone on the net that does a greater disservice to the maximalist cause than you, blue. You really should keep your mouth closed to keep all that shit that is your brains from leaking out of your mouth.

"It worked for France back when they started executing people for stealing fabric designs and it will work for the US of A today."

Obviously you flunked history class.

"The King responded by introducing penalties for pirating these fabrics. Light punishments at first, then gradually tougher. Towards the end, the penalty was death by public torture, drawn out over several days. And it wasn’t just a few poor sods who were made into public examples: sixteen thousand people, almost entirely common folk, died by execution or in the violent clashes that surrounded the monopoly. In practice, everybody knew somebody who had been horribly executed for pirating.

Here’s the fascinating part:

Capital punishment didn’t even make a dent in the pirating of the fabrics. Despite the fact that some villages had been so ravaged that everybody knew somebody personally who had been executed by public torture, the copying continued unabated at the same level.

So the question that needs asking is this:

When will the copyright industry stop demanding harsher punishments for copying, since we learn from history that no punishment that mankind is capable of inventing has the ability to deter people from sharing and copying things they like?"

"The power to interpret the bible from Latin had been shattered, ruined, destroyed – and with it, a large amount of the power of the Catholic Church. They tried every trick in the book to put the cat back in the bag and sabotage this technology – up to and including the death penalty, which was instituted in France on January 13, 1535, against the crime of using a printing press at all.

It didn’t work. The cat was indeed out of the bag. People could publish and distribute their own ideas. The hegemony fell, but not without some 200 years of horrible wars."

Re: Re: Re: Make it a felony already

Your first paragraph makes almost no sense to me, real who?

Anyways, I believe I explained myself, but you know what? I never reported the post, so he obviously had quite a few other people convinced it was the real OOTB too. If you swap just 4 letters, Mike for ootb, it reads like the real troll. Like I said, he did a good job of impersonating him.

Considering the sheer amount of shit Prenda appears to be in, its a surprise any judge can rule in their favor. But I guess that RIAA money is still good so long as she rules in favor of copyright, regardless of past or recent rulings.

Impeachment

Just shoot me already

The crazy in the US government is getting too hard to take. The entire thing is like a bad parody of itself. Woe unto humanity and all living creatures. Allah must surely be frowning as he rubs Mohamed and baby Jesus' feet.

Re: Re:

Re:

Prenda cases are not now nor have ever been about copyright enforcement. It is an extortion and blackmail shakedown pure and simple. The only difference is that copyright instead of violence is used as the threat. Maybe that says something about copyright.

Re:

"Mike Masnick just hates it when copyright law is enforced." is a registered trademark of SABAM brand pirate soap. YOU ARE ORDERED to fly your pirate ass to Belgium and turn yourself in. If you cannot afford plane fare, please hang yourself and provide proof of death.

The ISP's in question

The ISP's that filed a joint brief are as follows. TimeWarener, Cox, and Verizon. I am very glad to see this is getting heard. I cannot quite give citation but my gut tells me that the RIAA may be involved with Prenda some how.

As soon as I read the headline and knew this was a Prenda story I had to cue up some circus music on YouTube to set the ambience to write my comment to this story.

It's sad to see a Judge like Beryll Howell who more than likely got her appointment to the bench as a thank you from the Hollywood inspired and funded Obama White House obviously has not grasped the principal that Judges are supposed to be impartial to the issues and follow what the law is, in my opinion she has lost her way.

As soon as I read the headline and knew this was a Prenda story I had to cue up some circus music on YouTube to set the ambience to write my comment to this story.

It's sad to see a Judge like Beryll Howell who more than likely got her appointment to the bench as a thank you from the Hollywood inspired and funded Obama White House obviously has not grasped the principal that Judges are supposed to be impartial to the issues and follow what the law is, in my opinion she has lost her way.

The fact that she was a person who was a former RIAA lobbyist is still at the forefront of her priorities and her being non biased on the bench and following the law in her rulings is not of her concern nor interested.

Her blaming the ISP's for copyright infringement is asinine at best. Prenda as with their usual modus operandi has gone fishing for subscriber info, and found the perfect Judge in their shopping quest to give them the information they need to blackmail subscribers into a settlement in my opinion.

The fact that Judge Howell was going to give Prenda carte blanche to kick the extortion letter -er - I mean friendly settlement notice into high gear for people who aren't even in the jurisdiction of the court shows that their is no end to Prenda's tactic of not following the law and going for broke to cash in while they can before they are hit with RICO.

Prenda has judge shopped before and has once again, and I doubt we will see them stop the Judge shopping till they find one who is Troll friendly or they can find one who is just not concerned with the law or facts much like Judge Howell seems to be in this case.

This should be a win for the ISP's and the rest, but I wouldn't put it past this court where this case has landed for there to be some interference of the political kind behind the scene.

Steele who is obviously reading the Techdirt site and articles concerning Prenda and mostly himself isn't liking the fact that he is taking an ego beating and is coming off looking like someone who is one of the worst copyright troll's in business not to mention a few other thing and in my opinion old John is not taking that well.

It wouldn't be the first time in my opinion that John has posted comments here or elsewhere that trumped up how everyone is wrong and he will prevail. Well John doesn't seem so by all the courtrooms you and the Prenda gang are taking a thumping in and your facing sanctions is two cases and maybe a possibility of a third one looming.

I wonder if the Prenda gang and all their associated cases will be taught in Law School litigation classes as an example of "How not to run a litigation case" and be part of the class on ethics of "How you'll know when your ethics have crossed the line" you never know if that will be the case, but of course that just my opinion that could be the case.

I am still waiting for Prenda, Steele, and Duffy to file their appeal with the 9th Circuit Appeals Court in San Francisco over Judge Wright's ruling, you know the one John said they were going to file...tick tock John.

Maybe the latest extortion - er - I mean settlement letters that went out for 2500 bucks are meant to help cobble the cash up to pay the costs that came from Judge Wright's ruling. Maybe John had to take his matte grey Beemer back to the dealer and trade it in for that 77 Le Car they had at the auto yard down the street, could be...of course this is all Hypothetical.

I look forward to the Appeals courts ruling of Judge Howell's order as it seems to be based on personal beliefs rather than facts of law, of course this is just my opinion but we shall see.

I wonder how long it will be till we see the Prenda gang felling the weight of the IRS and RICO bearing down on them. I have to think Steele, Duffy, Gibbs, Hansmeier and Lutz will look good in the black and white pin stripes...well everyone has to have a dream.

Re:

Personally, I'd like to see what excuses Howell comes up with to help Prenda save their collective posteriors. Maybe the RIAA will weigh in. Then the general public can lump all of them together and marvel at what a thorough clusterfuck family they are.

Missing verb

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement.

Methinks a verb went missing there, although from context it's pretty clear what they meant.